The EU Proposal on GM Crop Cultivation: A Real Opportunity for Consumer Preferences?

Abstract

Consumer concerns in relation to modern agricultural biotechnology, and especially GMOs, are not decreasing as the various Eurobarometer surveys and, more importantly, the development of national safeguard bans and GMO-free regions can demonstrate. The 2010 GM crop cultivation proposal allows Member States to restrict or prohibit GMO cultivation based on environmental, health, and socio-economic considerations. This paper asks whether this proposal provides a real opportunity for the public to be heard, and what type of proof would be required from Member States to implement such restrictions or bans. The 2009 Commission of the European Communities v. Poland case deals with attempts by Poland to prohibit the placing on the market of GMO seeds. The Court rejected the prohibition based on consumer feelings about whether these could have been confirmed by looking at the Eurobarometers and the opinions of the European Group on Ethics. This decision creates considerable restraints for Member States to listen to their citizens. Further, it puts into question the role of the democratic process when based on consumer preferences, rather than a scientific risk assessment, as Members of Parliament are supposed to represent their constituencies. This case showed that the internal market remains arguably central to the EU and can only be jeopardized under specific conditions. Such a decision raises issues as to how consumer preferences would have to be substantiated in front of the Court and other EU institutions under the GM crop cultivation proposal. The EU seems to be at a crossroads between relying on science-based EU-level authorization and the free circulation of trade, and giving freedom to Member States to rely on consumer preferences. Many legal uncertainties remain to be solved before consumer considerations within Member States could play a decisive role in the regulation of GM crops.